pears that the appellant only occupied a part of this house; for which only he ought to be rated. As to the occupation of the kitchen, that is not by the appellant; and the communication between that and the rest of the house being stopped, they are as much divided as if they were separate and distinct tenements. Bearcroft, contrà.-The question here is not the quantum of the rate, but whether the party be rated for all the property for which he is liable. Now this was an entire house; part of which, and also the garden, the Sessions have found were actually occupied by the appellant; and the voluntary occupation of part of his house will not exempt him from being rateable for the whole. Perhaps this Court might have been precluded by a conclusion of the Sessions that he occupied no part of the premises. Lord KENYON, Ch. J.-If the Sessions had confined themselves to the finding of the fact of occupation on the face of their order, the consequence stated would have followed: but that is the very question which they have left for the decision of this Court; for they say, that on the evidence they were of opinion that the appellant only occupied certain parts of the premises; but they have stated all the facts which were necessary to enable us to draw the conclusion in law, Whether, as in fact he occupied a part of the house, he is liable in law for the whole? Now it is stated that this gentleman occupied the garden and part of the house, his servants other parts, and a poor man another part: but these occupations were not distinct from his own. He ought therefore to be rated for the whole; for it would be attended with great inconvenience to draw such a line as has been attempted in this case between the occupa tion of one part of the house and another. ASHHURST, J.-It would be a very inconvenient practice to inquire in each particular case what rooms of a house the owner occupied, before he could be rated. GROSE, J.-I consider the appellant as the occupier of the whole house. If a person were to shut up his garrets, it would be no ground to exempt him from being rated for the whole house. Order of Sessions quashed. 1791. The KING against The Inhabitants of ST. MARY THE LESS. [5 T. R. 591. 6 Ibid. 464.1 The 1791. Wednesday, In a quo warranto information the defend ant relied on an election by a homage consisting of 23 free tenants; on a special verdict that 21 of those per sons were not free tenants; and this Court held the election to be void. THIS The KING against T. MEIN. HIS was an information in nature of a quo warranto, calling on the defendant to shew by what authority he claimed and exercised the office of portreeve of the borough and manor of Fowey, in Cornwall; to which he pleaded that his Royal Highness the Prince of Wales is seised in fee of the the jury found borough and manor of Fowey, in right of his duchy of Cornwall, and that he and his ancestors have immemorially held a Court from time to time for the borough and manor by the steward of the Court or his deputy; that there is an immemorial custom within the borough and manor, for the homage of the free tenants of the borough and manor at such Court held next after Michaelmas, to elect and present to the steward or his deputy one of the free tenants, having been duly admitted upon the court-roll of the borough and manor, and having done his fealty to the lord of the borough and manor, as a fit and proper person to be portreeve of the borough and manor until the next Court held within and for the borough and manor by the steward or his deputy; which person so elected and presented, being approved of and sworn truly to execute the office, hath been during all the time aforesaid portreeve of the borough and manor until the then next Court to be holden as above: that at a Court held after Michaelmas 1789, ss. on the 26th November 1789, by J. Harvey then deputy steward there, the homage of the free tenants of the borough and manor duly charged and sworn, ss. T. Mein, P. Tonkin, and Others, elected and presented to J. Harvey, he (the defendant) then being one of the free tenants, having been admitted on the court-roll, and having done fealty, &c. as a fit and proper person to be portreeve of the borough and manor until the next Court, &c.: and that he was then approved and sworn, &c. The replication first denied the right claimed of holding the Court, as alleged in the plea; 2dly, The custom for the homage to present, &c.; 3dly, That a Court was held, as alleged; 4thly, That the homage of the free tenants did elect and present the defendant, &c.; 5thly, That T. Mein, P. Tonkin, and J. McBride, &c. [naming 20 others composing the homage] were at the time of holding the Court free tenants of the borough and manor, &c.; on which issues were severally taken. On At the trial before Heath, J. at the last Spring assizes in Cornwall, the jury found the three first issues for the defendant, and a special verdict on the fourth and fifth; stating as to the fourth, that the homage, consisting of the persons in the pleadings in that behalf mentioned, elected and presented the defendant; and as to the fifth, that T. Mein and P. Tonkin, two of the homagers in the pleadings mentioned at the time of holding the said Court for the borough and manor of Fowey, were free tenants of the borough and manor; and that J. McBride, &c. (naming them) the other twenty-one of the said homagers, were not at the time of holding the said Court free tenants of the said borough and manor; and that several other free tenants attended the said Court, and requested to be sworn upon the said homage, and objected to the swearing of the said twenty-one; but J. Harvey, the then steward, refused such other free tenants, and swore the said twenty-one on the said homage. But whether upon the whole matter, &c. Cowper, for the Crown, contended, that on this verdict there must be judgment against the defendant, he having relied on an election by a homage consisting entirely of free tenants, which is expressly negatived by the finding of the jury. The question here is not Whether two homagers alone could elect? but, Whether as twenty-one other persons, who were not free tenants, were associated with two who were, the election by all be valid? and that such an election cannot be supported is clear, whether it be considered on the general law on this subject, or on the circumstances of this case; for in all cases of election the act of the majority is binding, and is considered as the act of the whole number. 21 Ed. 4 fo. 27, 70. Case of The Chamberlain of the City of London, 3 Leon. 264.; 5 Rep. 62. S. C. 1 Roll. Abr. 514. pl. 6. Dav. Rep. 48. R. v. Grimes, 5 Burr. 2601. So if this be considered in the nature of an inquest, to inquire for the lord, and to present, &c. the act of the majority is the act of, and will bind the whole. The only exception to this is that of a petit jury: but the very exception proves the general rule. Then if the majority of these free tenants bound the rest, it follows that this presentment is bad. The only ground on which it can be contended that this election may be supported is this, That as two are a sufficient number to make a homage, and as there were two in this case, this presentment should be considered as their act, and the other twenty-one may be rejected. But, before they can be reVOL. IV. Ii jected, 1791. The KING against T. MEIN. 1791. The KING against T. MEIN. jected, it should appear that the remainder will be the same 66 66 "if an act of embracery were not known before the trial of a "cause, so that the party to whose prejudice it was intended, "had no opportunity to prevent the ill effects of it, by challenging the juror who was practised upon, it will be a good ground to move the Court to set aside the verdict." Now this is a stronger case; for here the homagers were objected to before they were sworn; but if the law be not settled in this particular case, arguments of convenience and justice will have great weight in settling what the rule should be; and it seems that a decision in favour of the defendant's election may be attended with serious mischiefs to the public, in giving a sanction to the secret views and misconduct of the steward of the Court, and with injury to the free tenants, who have a right to be sworn on the homage. The right of election is a valuable privilege in the electors; and here all the free tenants are interested in this question, inasmuch as each may in his turn be on the homage and become an elector. It is also of importance to the public that the purity of elections should be preserved; and the situation usurped by the defendant was the principal office in the borough. Dampier for the defendant. The grounds on which the defendant's election may be supported are shortly these: This Court was in the nature of a Court baron; the free tenants are the judges there, the steward is merely the register; in such a Court two are sufficient to make a homage; and as this presentment was made by two free tenants, it is valid, notwithstanding others were joined with them. The act of the steward, in admitting others on the homage to the prejudice of the two free tenants, ought not to vitiate their proceedings. It has been objected that it does not appear that the two free tenants concurred in the defendant's election: but, on the verdict, it must be taken that they did; for the finding is that they and others did present and elect him. The twentyone may be rejected; and then the finding that the presentment was made by the two free tenants, and also by the twenty-one others, will not affect this question. It is the same as if the by-standers in a Court were added to the jury. Neither is the refusal of the steward to swear on the homage those whom he rejected any objection to the title of the defendant, who was elected by those who were entitled to be on the homage: he was not obliged to swear more than those two. Whether the steward acted only from ignorance or from corruption, is immaterial in this question; as it does not appear that Ii2 1791. The KING against T. MEIN. |